Employers struggling to comply with the ever-growing number of laws regulating the workplace should be aware of the following two changes to the Family and Medical Leave Act (FMLA) that have recently either been enacted or proposed.

Recent Amendment Expands FMLA Coverage for Families of Military Service Members

The National Defense Authorization Act of 2008, which was signed into law by President Bush on January 28, 2008, has amended the FMLA in two significant ways.

First, an eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered service member is now permitted to take up to 26 weeks of FMLA leave in a 12-month period to care for the service member who became seriously ill or was injured while on active duty. The amendments define terms not previously included in the FMLA – namely “next of kin,” “covered service member,” and “serious illness or injury.”

Second, an eligible employee may take up to 12 weeks of FMLA leave in a 12-month period because of any “qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Congress has directed the Secretary of the Department of Labor to issue regulations defining what constitutes a “qualifying exigency.”

The new law applies only to employers with 50 or more employees. Covered employers should therefore revise their FMLA policies to notify employees of these new leave entitlements, modify their FMLA forms and paperwork, train managers and supervisors regarding the changes to the FMLA, and implement procedures to ensure compliance with these new FMLA provisions.

DOL Proposes Significant Changes to the Federal Regulations Governing the FMLA

The Department of Labor (DOL) recently proposed making a number of changes to the federal regulations that establish what employers and employees must do in order to comply with the FMLA. Several of these proposed changes are summarized below:

  • Employer Notice Requirements: Under the proposed regulations, employers would be required to include information regarding FMLA rights in employee handbooks or to distribute such information to their employees on an annual basis. As with the current regulations, the proposed regulations also require employers to provide timely notice to employees who might be eligible to take FMLA leave. However, for purposes of the eligibility notice, “timely” would be defined to mean generally within five business days, rather than the two business days currently required. In addition, once an employer determined that the employee’s leave qualified, the employer would be required to provide a designation notice within five business days of making that determination. This designation notice would be required to state the amount of the employee’s absence that qualified as FMLA leave, or, if it were indeterminate, the employer would be required to provide follow-up designation notices every 30 days. 
  • Employee Notice Requirements - The proposed regulations also impose stricter notice requirements on employees. Employees would be required to do more than simply call in “sick” in order to invoke their FMLA rights. Instead, they would be required either to specify the functions of their job that they can no longer perform or, if the leave were to care for a family member, to provide increased information regarding the family member’s inability to participate in regular daily activities. Employees would also be required to submit information regarding the anticipated duration of their absence and whether they (or their family member) will visit a health care provider.
  • Direct Contact with the Employee’s Health Care Provider Permitted - The proposed regulations would permit direct contact between the employer and the employee’s health care provider for purposes of clarifying the employee’s medical certification form, provided that such contact met the requirements of any applicable federal health privacy laws. 
  • Definition of “Serious Health Condition” Strengthened Slightly - The proposed regulations would create a somewhat stricter definition of what constitutes a “serious health condition” covered by the FMLA. Currently, employees must generally be incapacitated for more than three consecutive days and receive at least two treatments from a health care provider. The proposed regulations would require that the two treatments occur within 30 days of the beginning of the period of incapacity. In addition, a chronic condition would qualify only if it required at least two health care treatments per year.
  • Intermittent Leave - The proposed regulations provide that employees who need to take intermittent leave must make “reasonable efforts” to avoid unduly disrupting the employer’s operations. Because the current regulations provide that employees must “attempt” to avoid such disruption, the proposed regulation does little to address the administrative problems often associated with intermittent leave.
  • Settlement of FMLA Claims - The proposed changes make it clear that employers may settle FMLA claims without first obtaining the approval of the DOL or a court.

Employers have until April 11 to submit comments on the proposed changes to the DOL.